Boards in adversary positions in court

By Bill Fortier TELEGRAM & GAZETTE STAFF

Wednesday

Jan 30, 2008 at 1:55 AM

At a time when legal fees are cited as a major reason for freezing nonessential town spending, the Planning Board is squaring off against the Zoning Board of Appeals on two controversial and costly matters.

The Planning Board has filed two lawsuits in the state Land Court seeking to overturn two decisions by the ZBA.

One lawsuit, concerning the Diamond Buick Pontiac GMC Cadillac dealership at 768 Washington St. and 51 Faith Ave., names all of the ZBA members as defendants in their official capacities as well as the dealership and Massad Family Inc., which owns the dealership.

Neighbors of the business, which used to house a Riverside Mitsubishi dealership, started complaining to selectmen about a year ago about the unauthorized cutting down of trees and other work at the site. Diamond has been operating a dealership there for little more than a year

The alleged violations prompted the Planning Board on Jan. 9, 2007, to rescind a site plan for the property that dates back to April 26, 2000.

“While their vote was styled as a rescission of the site plan approval, it was, in fact, not a final decision of the Planning Board, was never filed with the town clerk and was not appealable in any forum,” Planning Board lawyer J. Raymond Miyares wrote in the lawsuit filed last Nov. 1.

The Planning Board is reviewing a new site plan for the dealership, said lawyer Paul O’Brien, who is representing Diamond in its dealings with the Planning Board. Mr. O’Brien also said a revised site plan may be submitted.

According to the lawsuit filed by Mr. Miyares, Diamond filed a purported appeal of the Planning Board rescission last Feb. 28 and the ZBA heard the appeal at a two-session hearing later in the year before it voted to reverse the Planning Board’s decision.

The suit contends that the ZBA: does not have the authority to hear an appeal of the Planning Board’s vote; exceeded its authority in voting to reverse the Planning Board’s decision; and actually took its action in an effort to initiate enforcement proceedings by the building inspector. The lawsuit asks the Land Court to annul the ZBA’s decision.

Mr. Miyares filed another lawsuit in Land Court Nov. 1 asking for the annulment of a vote by the ZBA purporting to reverse the Planning Board’s vote June 26 to deny a site plan for a proposed Lowe’s home improvement warehouse at Oxford Street and Route 12.

The reasons listed in that lawsuit, which names the same ZBA members and Lowe’s Home Centers Inc. as defendants, are the same as those listed in the Diamond case.

Three residents — Gary Lemerise of 3 Linda Ave., Diane Burke of 5 Linda Ave., and Mary Anne Anderson of 11 Linda Ave. — have also filed a suit in the state Land Court in the Lowe’s case. They are also asking the Land Court to annul the ZBA’s decision. Linda Avenue is next to the proposed Lowe’s.

The residents are represented by Boston lawyer Elizabeth M. Pyle, who said both suits involving Lowe’s have been combined for review by the Land Court. She said a Land Court judge will hear arguments at a summary judgment hearing scheduled for March 26 . Dennis Natoli, a member of the ZBA, said it is unusual for town boards to file suit against each other.

“I guess my comment is, it’s a shame that the town is wasting the taxpayers’ money for attorneys’ fees. Most towns wouldn’t allow it,” he said.

Ms. Pyle said that while it unusual for one town board to sue another, it isn’t rare.

“It happens,” she said.

She said the town’s taxpayers will have to pay for lawyers involved with both the Planning Board and ZBA. As of the end of December, the town’s legal fees are $12,916 involving Lowe’s and $3,380 involving Diamond, according to Assistant Town Administrator Edward J. Kazanovicz, who is also the town accountant.

“The town has to decide the proper process for deciding which board has ultimate approval for site plans,” Ms. Pyle said. “The town really has to decide who is responsible for site plan approvals.”

In a recent interview, Mr. Kazanovicz said mounting legal fees were a big reason why the town froze spending on nonessential items.

He cited litigation involving the proposed Lowe’s warehouse and the Diamond dealership as factors in the jump in increased legal fees. He said $58,000 of the $65,000 in the general counsel account had been spent and that didn’t include the December bills.

In other action, selectmen met in executive session for almost three hours Monday night. When the meeting went into open session about 9:15 p.m., board Chairman Elizabeth L. Prouty announced that two labor contracts had been settled.

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